The Immanent Frame

Posts Tagged ‘religious freedom’

The U.S. Supreme Court’s decision in Burwell v. Hobby Lobby raises a series of important questions for public debate. If for-profit corporations are entitled to exercise freedom of religion, then as a civil society we must consider certain questions that follow from this extension of the prerogatives traditionally granted to churches and other religious organizations, as well as to individuals acting in their private capacities. My analysis will focus on these larger questions of policy and attempt to provide some further context for the debate that should now occur.

Winnifred Fallers Sullivan, whose insights are always penetrating on these issues and worth pondering carefully, has missed the mark in her earlier reaction to the decision. She uses Hobby Lobby as an example of the reductio ad absurdum of the logic of freedom of religion, and argues that we (especially liberal exponents of toleration) are unable to reasonably deny freedom of religion in cases where the substantive rights guaranteed seem intolerable to many. I respectfully disagree.

It is easy to forget that religious freedom wasn’t an only child: she was a part of a family of counter-measures listed in the First Amendment. The naming of religion in the Constitution was, and is, a defensive move: whatever government does, it should not get in the way of its citizens trying to articulate their opinions—opinions articulated through speech, through the press, through assemblage, and through petition. Religion appears in the Establishment Clause as a reminder that religion has been one of the things that has kept people from being able to reply freely to their governments. Free from influences within government, and free from religions that compete with government in their authority.

A few blocks from my apartment, a neighbor has displayed a placard proclaiming “Defend Religious Liberty.” These words could encompass a range of meanings and raise any number of questions. What, exactly, does religious liberty entail? Who claims it? Who attacks it? But no one is left wondering for long, as the graphics define the intent of the sign more explicitly. Behind the capitalized words, an eagle shares space with an American flag and a cross. Defending religious liberty in the United States, the illustration bellows, is patriotic. And it means protecting Christianity.

This sign, I think, signifies the key issue for liberals in the wake of the Supreme Court’s 2014 term major religion decisions—Burwell v. Hobby Lobby, Wheaton College v. Burwell, and Town of Greece v. Galloway. The core concern is not with the mixing of religion and profit, or sexual matters. Instead, it is a gnawing sense of unease about the solicitude granted to the type of religion that has long been powerful, but is presented by its adherents as marginalized; in short, the problem lies in the twin-set of power and privilege.

Toward the end of her Burwell v. Hobby Lobby dissent, Justice Ruth Bader Ginsberg finally gets to the heart of the problem. Describing a slew of contentious claims that might follow the Court’s decision, she asks, “Would RFRA [Religious Freedom Restoration Act] require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not?” Yes, a chorus of religion scholars might respond, how indeed? How can the Court possibly countenance all the claims advanced under the mantle of religious freedom without drawing some highly questionable distinctions? How can it possibly demarcate the limits of religious freedom without deeming some beliefs more worthwhile than others? Lines will have to be drawn.

The legal status of corporations as fictive persons is well-lampooned in the bumper sticker that reads, “I’ll believe corporations are people when Texas executes one.” As entities with legal status as persons, corporations do not bleed or feel pain except metaphorically, for example, when they hemorrhage cash, perform anemically, or suffer from an economic downturn or shortage of labor. Nevertheless, as fictive persons recognized by law, corporations are building blocks of commerce, government, and religion in the United States, and they have operated as organizing mechanisms in Western society since ancient Roman times. Of course, shielded by legal protection, corporations have done great harm—think of the Royal Africa Company and its role in stimulating the rapid growth of slavery in the Atlantic world in the eighteenth century. Accordingly, in the United States, constitutional amendments and labor and civil rights legislation have been enacted to constrain or outlaw numerous forms of corporate activity deemed unsafe or unfair.

In the wake of last summer’s Burwell v. Hobby Lobby and Wheaton College v. Burwell decisions, many wondered how corporations could exercise religious liberty. Liberal discussions focused on the apparent absurdity of extending constitutional rights to ethereal legal fictions rather than flesh-and-blood human beings. While those who decried the decisions often focused on the Supreme Court’s tenuous definition of personhood, Winnifred Fallers Sullivan’s essay shifted critical attention to shaky assumptions about religion. According to Sullivan, liberal critics have overlooked tensions within their own models of religious freedom. These tensions reveal “the ramshackle structure of current religious freedom jurisprudence in the U.S.”

In this post, I want to revisit Sullivan’s focus on the category of religion. Rather than expand on her critique of the “rotten core” of religious freedom, however, I would like to use the Hobby Lobby decision to consider what kind of religious exercise the court protects. In my view, the court has invented a novel form of religious practice in which people protect their property from the polluting contact of other people.

In the last week the US Supreme Court has acted in two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.

In a recent essay on equality and citizenship in a multi-religious Sudan, Noah Salomon describes a commitment among development experts to equality before the law as a “non-ideological” solution to the problems of post-conflict societies. Salomon disagrees with the consensus, suggesting rather that “law, the institutions which promote it, and our relationship to them enfold deep ideological and political commitments which require a whole host of presumptions about justice and how best to achieve it.” While the rule of law is assumed to govern from a neutral public space that has transcended ideological and political particularities, the hegemony of rule of law discourse should not be taken as a mark of neutrality. It would be a mistake to remove the rule of law from conversations about power, history, difference, and governance.

Monday, May 12th, marked the ninth and final phase of India’s general elections, and the results announced in coming hours will likely declare Narendra Modi as India’s prime minister. Modi, the candidate of the Bharatiya Janata Party (BJP)-led National Democratic Alliance, would then lead the world largest democracy—one with a staggering 814.5 million registered voters—but has been denied entry into ours: for almost a decade, the Department of State has banned Modi from entering the United States. Looking back at how this came to be highlights the uneven history of religious freedom as part of American foreign policy.

Having been invited to reflect upon the themes of this forum, first raised during the European University Institute (EUI) workshop “Beyond Critique,” I hope the reader will not mind if I begin my essay with a story about shipwrecks.

In a now-famous talk, the Columbia University historian Carol Gluck suggestively argued that history finds itself, temporally and conceptually, “after the shipwreck.” The “shipwreck,” for Gluck, stands as a metaphor for the destruction of the major metanarratives (scientific objectivism, progress, modernity, chronological linearity, historical materialism, the nation) and paradigms (Marxism, Liberalism, Nationalism) that have underpinned much of modern historiography. The deconstruction of such metanarratives is inseparable from the scholarly turn to critical theory, post-structuralism, and post-colonial approaches to the study of history starting in the late 1980s.

Walking down Bowne Street in Flushing, Queens, you may see a most interesting sign. “Bowne House; Built in 1661,” it reads, “A National Shrine to Religious Freedom.” Flushing is known for many things—the New York Mets, for example, or its Chinatown. It is not, however, known for being the location of one of the first debates over religious conscience and tolerance in the American colonies.

Religious freedom has become an international concept: As the scope of the recently concluded Politics of Religious Freedom project attests to, the grammar of religious freedom has spread far and wide, creating a broad and complex field where international norms and procedures frequently clash with deeply embedded local conceptions of law, religion, and freedom.

Before making projections about the future of religion and secularity in China, we should first take a step back and reconsider some notions about how China’s approach to religion has historically differed and sometimes conflicted with Western ideas and practices.

The first is the image of the People’s Republic as an axiomatically anti-religious state. One could certainly be forgiven for thinking of socialism and religion as oil and water. Marx famously declared religion to be the “opium of the people.” Lenin saw the Orthodox Church as the last and most recalcitrant bastion of Tsarist sympathy and insisted that the landed monasteries had to be destroyed in a way that was violent, thorough, and public. After the Second World War, the Catholic Church and Catholic-affiliated movements emerged among the most strident critics of Communism. Decades later, Catholic support would be instrumental in helping a Polish labor movement bring about the collapse of Soviet power in Europe.

The complex and ever-changing relationship between the Chinese state and the nation’s religions stretches back thousands of years. While the state never struggled with religious leaders for power, it governed an embedded religiosity in the population, one best described as diffused, non-exclusive, and pluralistic. As a companion to The Immanent Frame’s newly launched series of essays on the state of religion in China, this piece embarks on a brief historical survey, outlining the wide variety of beliefs and practices that religion in China encapsulates, and paying particular attention to the events and philosophies that have shaped the policies of the atheist People’s Republic of China.

Earlier this summer, The Immanent Frame published an off the cuff exchange about the State Department’s new initiative to engage religious communities in US diplomacy. Conversation and critiques are still going strong; Elizabeth Shakman Hurd, an original contributor to “Engaging religion at the Department of State,” has penned a commentary for Al Jazeera America in which she critiques US faith-based engagement abroad as a violation of the separation of church and state.

In its annual survey, “Minority Religious Communities At Risk,” the First Freedom Center of Virginia observed intensified contention over the right to freedom of religious expression in both Canada and the United States. As evidence, the editors highlighted a major Canadian Supreme Court decision as well as public criticism of the conservative government’s creation of an Office of Religious Freedom; for the United States, the editors cited the litigation over the 2011 Patient Protection and Affordable Healthcare Act. The contention in both countries seemed to pit conservative religious-freedom advocates against a progressive secular establishment. However, as I argue here with the Canadian case, the situation is more complicated.

In late July, The Immanent Frame published a set of reflections on the Department of State’s plans for a new office dedicated to engaging religion. Following an official announcement by Secretary Kerry on August 7th, scholars and policy commentators have continued to weigh in on the implications, challenges, and potential of the new Office of Faith-Based Community Initiatives.

Allison Kaplan Sommer and Dahlia Lithwick write at The New Republic write about the struggles of an emergent form of feminist protest among Modern Orthodox Jewish women in an Israeli city. The article profiles a struggle against the unofficial gender segregation that these women are sometimes pressured to comply with.

This past week, the US Department of State announced the creation of a new office that “will focus on engagement with faith-based organizations and religious institutions around the world to strengthen US development and diplomacy and advance America’s interests and values.” Citing widespread religious persecution and violence overseas, proponents of the new office of “religious engagement” hope to further institutionalize an official US commitment to globalize religious freedom, marginalize extremism, and promote interfaith dialogue and religious tolerance. Yet this initiative also raises concerns regarding the intersection of religious freedom, religious establishment, and foreign policy.

What are the prospects for the new office, and what are the potential implications of its efforts for the politics of religious diversity, both locally and transnationally? What assumptions about “religion” underlie these efforts, and what are the implications for civil society, including organizations and associations that do not self-identify as religious?

In The Future of Religious Freedom, editor Allen D. Hertzke assembles a diverse team of international scholars to not only determine the current status of religious freedom in the world but also understand the prospects for improvement.

I have been observing and analyzing religious trends in various parts of sub-Saharan Africa for several decades, with a particular focus on new religious movements, variously termed “minority religious groups,” “sects,” or “unconventional religious groups.” My years of living in southern Nigerian cities afforded me valuable insights into the workings of complex religious landscapes. As democratization, neoliberalism, media deregulation, and global religious activism increasingly change the stakes of coexistence between religious groups, and between such groups and the state, the management of Africa’s increasingly competitive religious public spheres has become a more compelling area of investigation.

This short piece attempts to come at the current debate on law and religious freedom from two unusual angles. I end by looking at the strange and revealing positioning of “religion or belief” in current legislation in England and Wales. And I begin by putting a different spin on religious freedom by exploring the terrifying freedom of the concepts of religion and belief. We have never needed the rise of Al Qaeda, so-called Islamicism or a hardline religious right to terrify us with a resurgent specter of specifically religious (as opposed to purely “political”) “terror.” Instead of bearing down on us like some old specter of the Turk or Moor at Europe’s gates, the terror of religion emerges—or insurges (if “insurge” can be made into a verb)—from within the normative conceptualizations of religion in the so-called modern West.

New Directions in the Study of Prayer grantee Peter Manseau observes that both the Obama and Romney campaigns describe religious liberty as America’s “first freedom,” a characterization that has “become so commonplace that it seems churlish to question it.” But Manseau finds that what constitutes the first freedom has historically been far from clear-cut, and […]

Elizabeth Shakman Hurd, co-Guest Editor of the TIF discussion series The politics of religious freedom, reflects on the sometimes paradoxical effects of the state promotion of religious freedom—and argues that Canada’s proposed Office of Religious Freedom should adopt a more nuanced, less top-down approach.

On October 11, 2012, the Religious Freedom Project of the Berkley Center for Religion, Peace & World Affairs and the International Center for Law and Religion Studies at Brigham Young University’s School of Law will convene a conference at Georgetown University on “Differences between the U.S. and European Approaches to Religious Freedom.”

I would like to begin with a famous case in Egypt that, though over a decade and a half old, remains salient for thinking about religious freedom. This is the apostasy case of Nasr Abu Zayd, the professor of Arabic and Islamic studies who was declared an apostate by the Egyptian courts, and whose marriage was forcibly annulled as a result. The case was raised using a highly controversial principle within Egyptian law, and much of the debate was about whether its use was acceptable within this case. This principle was called hisba, and it technically means, “the commanding of the good when its practice is manifestly neglected, and the forbidding of the detestable when its practice becomes manifest.”

Unlike Europe and North America, the discussions in South Africa relating to religious freedom do not center on the extent to which religion can be excluded from the public domain but rather the extent to which it can be accommodated. It is not surprising that South Africa has chosen to respond to the issue of religious freedom in a more tolerant manner given its discriminatory-laden history under colonialism and apartheid. While race-based discrimination was the most obvious, religion was a further invidious form of discrimination. Christianity was the dominant religion and was often used by the apartheid government to justify its oppressive laws. For instance, marriages that did not conform to Christian values such as monogamy and opposite-sex unions were regarded as uncivilized relationships that were not worthy of legal recognition. Thus, potentially polygynous marriages such as African customary marriages as well as Muslim, Hindu, Jewish, and same-sex marriages did not enjoy the legal protection that Christian marriages enjoyed.

These essays provoked me in a number of ways, especially with their combined penchant for probing raw nerves. Indeed, I didn’t fully understand how raw—let’s say conflicted—I was about religious freedom discourses and practices until this intervention was staged. In the spirit of therapy, then, we can begin: “Hi, my name is Greg, and I’ve led a carefree lifestyle, all along assuming religious freedom is a good thing. I’ve been drinking this cocktail for years; it has become part of my identity. Thanks to these scholars, I’ve been sober for three days.”

To this stimulating and learned series of posts I cannot add much about the genealogy of religious freedom or its fate in the US courts, never mind predict the consequences of judicial decisions, or even address a larger question raised by Winni Sullivan and others which, I take it, has to do with the general effects of submitting questions of religious practice to a particular kind of legal system, one that works by means of precedents, binding decisions, etc. I make two comments as an anthropologist.

Alison Parker, the Human Rights Watch U.S. Program Director, composed a letter to U.S. Attorney General Eric Holder, urging the Department of Justice to open an investigation into the NYPD’s surveillance and profiling of Muslims based solely on their religion.

Everson v. Board of Education is considered a landmark of First Amendment jurisprudence. That 1947 case marks the first time the Supreme Court held that the disestablishment provision of the First Amendment is binding on the states, and not just on the federal government. The “incorporation” of the principle of disestablishment thus completed the task begun seven years earlier in Cantwell v. Connecticut, when a unanimous Court held that free exercise applied to the states. In Cantwell, the Court overturned the convictions of three Jehovah’s Witnesses, who had been arrested for unlicensed soliciting and a breach of peace.

As several contributors to this forum have pointed out, legal provisions regarding religious freedom do not emerge from history fully formed and self-interpreting. At their core, they are iterations of words and texts, (re)produced and (re)authorized by different persons or groups for different purposes. What they mean depends on local facts.

This contribution expands upon this observation by offering a different story about drafting religious rights in a particular place and time. I will show the ways in which religious rights, as rhetoric, serve not as apolitical instruments, but as indicia of political alliances; not as generic, universalizable norms, but as specific formulations of norms suited to particular moments and in service of particular political programs. In this version of the story, religious rights, rather than conclude conflict and harmonize societies, signpost disagreement.

In this post I explore the case of Bangladesh: the state of secularism there and the tensions and polemics that accompany the pursuit of an ideal secular state and society. I do this by reflecting on reactions surrounding women’s turn to greater religious engagement fostered through their participation in Quranic discussion circles in Dhaka. In outlining some of the tensions underlying the reactions, I wish to draw attention to the stakes of remaining confined to a binary view of religion and secularism, especially as new religious forces and faces come into the public space with the intent of developing and transforming it.

Adopted in 1950, Article 17 of the Indian Constitution legally abolished untouchability—the ancient Hindu system of social discrimination—forbade its practice in any form, and made the enforcement of any discrimination arising out of this disability a criminal offence. At the same time, the Indian Constitution guaranteed freedom of religious belief and practice under Article 25 and autonomy of religious institutions under Article 26. The discussion of Employment Division v. Smith in Winnifred Sullivan’s post and subsequent comments reminded me of the very substantial jurisprudence surrounding Article 26.

The Tunisian uprisings of December 2010 are often depicted in negative terms, as lacking leadership, ideology, and political organization. Nahda (the Tunisian Islamist movement that, after decades of exile and repression, won 40 percent of the seats in the elections of October 2011) members are now accused of working to turn Tunisia into a “sharia state,” in which religious freedom, women’s rights, and freedom of expression would cease to exist. While the fears of individuals and groups who disagree with Islamists have to be taken seriously, discussion of current changes needs to be based on a real engagement, not on caricature.

Religious freedom and religious establishment have come to mean many things to many people. This is, in part, because of the shifting contours of the definition of religion itself (as has been pointed out by others in this series, including Winnifred Fallers Sullivan and Elizabeth Shakman Hurd). But it is also because the nature of freedom is contested ground. The shifting nature of these two concepts makes normative assessment—religious freedom is good, religious freedom is bad—extremely difficult to carry out in any meaningful way. Further, when people advocate for or against religious freedom they are often talking about very different things. Similarly, the measurement of establishment is equally nebulous.

What is the politics of religious freedom? For the past decade and more, those who would like to see the active promotion of religious freedom at the “core” of foreign policy in the U.S. and now in Canada would have us understand that religious freedom is the foundation of democracy, the basis for political stability and first step to all other freedoms. The mission statement of the Office of International Religious Freedom in the U.S. Department of State links its promotion of religious freedom to human rights and to political “stability” for “all countries.” Referring to the establishment of a new Office of Religious Freedom within his government’s Department of Foreign Affairs and International Trade in a statement to the United Nations last year, the Canadian UN Ambassador declared, “History has shown us that where religious freedom is strong, democratic freedom is strong.”

I want to start with a paradox. In the secular age, as Charles Taylor has amply illustrated, religious belief no longer structures our social imaginary. Instead, it has become one option, one possibility, among others: one of the ways in which we give meaning to our lives. The secular age, then, is characterised by the fact of pluralism—an irreducible pluralism of beliefs, values, commitments. Yet we secular moderns also give special primacy to freedom of religion. Freedom of religion is standardly presented as the archetypical liberal right. So the paradox is this: how (and why) do we protect freedom of religion in an age where religion is not special?

As Elizabeth Shakman Hurd’s and Saba Mahmood’s earlier contributions to this discussion remind us, the received wisdom in Western policy circles today emphasizes the necessary synergy between democracy and religious freedom. What I wish to suggest in my remarks here is not that this characterization is wrong, but that it is sociologically too simple, and that the oversimplification can result in ill-conceived prescriptions for pluralist religious freedom.